Justice Gorsuch Questions Government Contractor Immunity in Supreme Court Case

Gorsuch's Core Question on Government Position

• ❓ Justice Gorsuch expresses confusion about why the government would take a position that could thwart the implementation of its own programs.
• 💡 He questions the government's stance, suggesting it casts doubt on the assertion that these programs will operate smoothly.

Legal Arguments and Precedents

• ⚖️ The attorney suggests the government's brief is driven by a reconceptualization of common law history, proposing a derivative privilege.
• 🚫 This argument, previously urged in cases like Campbell Ewald and Childs, has not been embraced by the courts.
• 🏛️ Historically, the government has consistently sided with its contractors in such matters.

Contractor Litigation Costs and Contracts

• 💰 Gorsuch asks if contractors can negotiate for the government to cover litigation expenses.
• 🚫 The attorney explains that the Anti-Deficiency Act prevents open-ended indemnification, and FAR 31.205 excludes many litigation costs from fixed-price contracts.
• ⚠️ Attempting to include these costs as overhead would constitute a false claim, exposing contractors to suit under the False Claims Act.